AFACT v iiNet: Legal expert says it's far from over

iiNet may have won the battle, but the war looks far from over

iiNet's win in its civil case against the Australian Federation Against Copyright Theft (AFACT) in the Federal Court of Australia is just the start of a potentially long legal war, according to a Melbourne University copyright law expert.

In the wake of much industry and online applause for the decision by Justice Cowdroy to drop the case and award costs to ISP, iiNet, Melbourne University associate professor, David Brennan, said an appeal was likely and interested parties are "probably looking at 2011 or 2012 before a final judicial determination".

"I think it is wrong to see this as the be all and end all," Brennan said. "This is simply the opening battle or the first chapter in the legal story. It will, I think, have to play out all the way to the High Court and I wouldn't be surprised if the High Court granted leave either way the decision goes in the full Federal Court. I think the dissatisfied party would seek leave to the High Court after the full Federal Court decision and there is some degree of likelihood the High Court would grant that."

Both parties have suffered considerable financial expense to date in pursing the case and AFACT was ordered to pay iiNet's costs to the tune of $4 million. It is another reason AFACT will likely seek an appeal, Brennan argues.

"The cost of preparing an appeal book and having a three-day hearing is minuscule compared to the cost that has already been incurred," Brennan said.

The legal arguments put forward by Justice Cowdroy around the issue of authorisation liability, while unambiguous and "well-thought out" could also give rise to an appeal.

"For those of us involved in talking about copyright law it is good because the judge spells out exactly the basis upon which he makes his decision. In doing that he seems, in my view, to depart a little bit from what had emerged as an orthodoxy on authorisation liability," the associate professor said.

"One can understand that because these are new and difficult and different circumstances. The orthodoxy that had emerged was to say if there was a high degree of power to control and very little active encouragement or indifference, that could amount to authorisation. Or alternatively, if there were a lot of active encouragement and very little or marginal control that too could amount to authorisation. The judge, here, steps a little outside of that and simply says there is another aspect of authorisation and that is for anyone to engage in authorisation liability they have to provide the means."

In giving his reasons, Justice Cowdroy said iiNet only provided Internet access and, in doing so, had no responsibility for copyright infringement and abuse of peer-to-peer protocols like BitTorrent.

(Read the full judgment.)

"iiNet did not authorise infringement of copyright by its users," Cowdroy told an audience of 70 at the court.

"In the law of authorisation there is a distinction to be drawn of the means of copyright infringement... the mere provision of access to the Internet [does] not authorise infringement. iiNet has no control of the BitTorrent system and is not responsible for its use by users."

The judge also relied on several cases including a landmark copyright case involving the University of NSW library in 1975.

The University of NSW v Moorhouse (1975) case, in the High Court of Australia heard the Australian Copyright Council (ACC) engaged a UNSW graduate named Paul Brennan to make photocopies of pages of books by Frank Moorhouse at the UNSW library.

Moorhouse did not know Paul Brennan was asked to make copies of sections of his work, but later joined with the ACC to bring a test case against the university after he was informed of the breach of his copyrighted books.

After consideration of numerous copyright issues, the court found "the appellant (UNSW) authorised the doing on 28th September 1973 by Paul Brennan of the act of reproducing the literary work 'The Americans, Baby' in a material form and thereby infringed the respondents' copyright in the said work".

Justice Cowdroy, in contrast, found iiNet did not authorise copyright infringement as it did not provide the means in his opinion.

"I'm not sure myself whether this is the be all and end all and only one entity can provide the means," Brennan said. "If I said to you, I want you to photo copy this book that is in the library and here is a bag full of coins. Go to the library, feed the machine and make a complete copy of the book. Now, have I provided the means or have I simply provided the necessary precondition for infringement? It seems to me in that situation that I have provided the means as much as anyone. The whole idea that only one entity can be the means to an infringement is different and quite contestable."

In other words, Brennan argues AFACT will likely look to this kind of argument as grounds to launch an appeal.

"That is the key plank on which the whole decision rests."

Should the case make it all the way to the top of the judicial system, it is likely legislative changes will be made, Brennan added. However, the office of the Communications Minister, Stephen Conroy, has kept tight-lipped about possible legislative changes to telecommunications and copyright law in the wake of iiNet's victory.

"If there is liability found on iiNet [in appeals] then there will have to be legislation to manage that liability; I don't believe the current legislation is adequate," Brennan said. "If there is no liability found I think there is likely to be some pressure placed upon the parliament to refine the legislation to bolster the obligations on ISPs."

It is therefore "highly likely" intense lobbying from the film studios and TV stations will occur.

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Great News that iiNet won although it is obvious that a ISP should have no responsibility about what the client downloads. IThe bitter truth for the Movie and Music industry is that it is their own responsibility to police their copyrighted material and nobody is going to do it for them for free.
If they themselves provided the content at a fair price on the internet perhaps there would be less piracy.

Tim Vim


I download movies, games, and programs; if I like them I will buy them. What this buffoon means when he says they cant "compete" is completely beyond me. Why would they be trying to compete with their own product? It is undeniable that these guys think that every copy that exists is worth the value that they place upon it, when in fact most of their stuff is literally worthless, I only buy things when I deem them to be of quality workmanship.



I have followed this issue with great interest and whilst the named ISP has had a win, now we await to see if the Federal Court's judgment will be appealed. The movie/record industry must accept responsibility for not doing enough to make their product more attractive to customers via cheaper prices. It will also be a struggle to get the Senate's approval for any changes to copyright or telecommunication law. I think everyone should have a read of the judge's decision and has acknowledged that copyright infringement is a global problem. Any changes to the way ISPs provide a service where costs have to be passed onto customers for policing remains questionable.



Go IiNet go, the issue should have never even been dragged into court, the argument retarded and invalid.

Jeff Citizen


I'm glad that iiNet has won this battle, but I doubt they'll win the war. The movie studios have way too much money at their disposal and they will bully and hassle and play the all the legal games until the small guy runs out of money or they'll find a judge who is either clueless or sick of the whole thing and let them have their way.
I do download content I know I might interesting. I can download it right now and watch it without ads or I can borrow a DVD from a friend or I can wait 2 years and watch it on TV... but I still won't be watching the bloody ads. So if I'm not going to be paying for the content in the end anyway, why is there and argument that I am doing something wrong by watching it now? Bottom line is... I'm not going to pay and I'm not going to watch ads. The content producers make stacks of money off the franchise goods. The rest is just milking the public.



As a computer tech, I can assure you that this whole issue is a waste of time. There is far more piracy by people who rent a DVD and then copy it using a program on their computer than their are people using their internet allowance on downloading movies of doubtful quality. Nowhere has it been suggested that AFACT will take all the Video Stores to court for hiring out their movies and thereby providing the means for infringement of copyright. Wake up AFACT piracy can not be stopped and hopefully the High Court will not allow an appeal. The courts have better and more necessary cases to hear than one about a lost cause like this one.



All these TV/movie studios have to do is provide their product when released in the US/UK at a fair cost and most illegal downloading would go away. instead they treat their potential customers like criminals and stick to outdated business models.



ROFL is all I can say. These movie dudes are pathetic. Are they going to take every ISP company in the entire world on? We have 100's here in OZ, not just iinet, so I guess that Telstra is next, followed by AAPT and Optus and so the list goes on. Should be good fun for the lawyers involved, raking in millions whilst these moronic Hollywooders fill our courts for the next 20 years trying to prosecute every Australian who has ever downloaded a movie. Sorry to say but you are in Australia not America! Hopefully the courts and judges eject these idiots from our legal system so other cases can be seen to that are more important, like real criminals and executives ripping off joe public. PFFT!



Hellfire (#6) is correct. Many video stores rent-out their films at half price in the middle of the week (non-peek period). DVD & Blueray cracking/ripping software is either free or a few dollars (with quick support for cracking new keys). You can rip a Blueray, re-encode it to fit onto a DVD (if desired) & pass it around your mates for a couple of dollars.

Besides, by the time this legal battle is through, pirates would've moved way beyond bit-torrent to multi-protocol encapsulated encrypted networks. The point being, even if you analyse someones traffic, you won't know for sure what someone is doing, as a single application traffic load is distributed across the noise of multiple protocols.

Malone from iiNet is right when he says that the movie companies should talk to ISPs about becoming new distribution channels, at a cheaper price. Of course, some movie companies have a financial stake in cinema real-estate, so I'm not to sure whether they want to deal with ISPs. Time will tell.



Getting the content on-line at a reasonable price would go a long way toward getting public opinion back on the side of the film industry.

Content creators also need to realise that DRM is the enemy of profit when non-DRM copies are already widely available (i.e. ALWAYS). Many people do want to support creators, but when the illegal version is easier to use, more versatile, AND free, they will be tempted to take that route. While pirates exist, you need to factor them into your business strategy as competitors. Don't give them the advantage of a superior product by crippling your own copies.



How is this case any different for holding gun manufacturers responsible for the people murdered using their weapons? It's just rediculous. I hope the companies AFACT represent suffer a sudden cronic wave of piracy and nobody pays their extortion charges.



Here here, Number 10 Sven..

DRM is a major reason why I download stuff..
Why would I pay for an inferior product laced with DRM? It makes no business sense at all!
Similarly annoying are the ads at the start of the DVD (THAT I JUST BOUGHT!) telling me not to download movies... I DIDN'T!!
Stop accusing your paying customers of piracy and stop assuming that they will turn to piracy after buying something..
It's rude at the least






The bottom line is, if you can read a 1 or a 0 then you can write the same 1 or 0. If you don't want perfect digital copies then don't digitize.



They're also making their money off bullying users with legal jargon.

Send out 10,000 notices and make $500 per notice. End user won't bother contesting because Big Money can drag them through the meat works for years and they can't afford the application fees to the court, let alone a lawyer.

The system stinks, but at least Justice Cowdroy has a good head on him.

All hail Justice Cowdroy!

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